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What is AB 540?

AB 540 is a way that some undocumented students can achieve a college education. The following narrative will discuss key questions: What is AB 540? What is the history of AB 540? How can a student qualify for AB 540? Why is an Affidavit required? Will US immigration know how to find a student enrolled under AB 540?

State Law AB 540

On October 12, 2001, Governor Gray Davis signed into law Assembly Bill 540 (Stats.2001, ch 814) that added a new section, 68130.5, to the California Education Code. Section 68130.5 created a new exemption from payment of non-resident tuition for certain nonresident students who have attended high school in California and received a high school diploma or its equivalent.

AB 540 Guidelines & 68130.5 Requirements for Eligibility

  • Must have attended a California high school for 3 or more full academic years (between grades 9 though 12, inclusive and does not need to be consecutive years.);
  • Must have or will graduate from a California high school or have attained a G.E.D.; or received a passing mark on the California High School Proficiency Exam (CHSPE);
  • Must register or is currently enrolled at an accredited institution of public higher education in California;
  • Must file or will file an affidavit as required by individual institutions, stating that the filer will apply for legal residency as soon as possible;
  • Must not hold a valid non-immigrant visa (F, J, H, L, A, E, etc.)

AB 540 Ineligibility

An ineligible student is one who does not meet the AB 540 criterion. In most situations, not having met the three years attendance at a California high school is what prevents a student from qualifying for AB 540. Students can still attend the university as long as they meet the admissions criteria and are accepted by the college or university, but must pay non-resident fees.

AB 540 Affidavit

The AB 540 Affidavit serves two purposes: one is to verify that the student meets the educational requirements, and the second is to certify the intent to establish legal residency. Use the Student Affidavit for Exemption of Non-resident Tuition. The affidavit and support documentation of high school attendance and graduation should be submitted after the university makes an admission offer and before the student pays tuition and fees. Student information obtained this way is strictly confidential unless disclosure is required under law.

Brief History of AB 540

The legislation was signed on October 12, 2001. By January 2002, the law took effect for the California Community Colleges (CCC) and the California State University (CSU) as Education Code §68130.5. On January 24, 2002, the University of California Board of Regents voted to align the UC system with the CSU and CCC policy by adopting AB 540. AB 540 applies to “any student, except a person in non-immigrant status, who meets the specific requirements, shall be exempt from paying nonresident tuition at all public colleges and universities in California.” The law set out specific requirements, including an affidavit and provided that all information provided by the student would be kept confidential by the college or university. Each system allowed for an affidavit to be submitted to its system once, so long as enrollment was continuous. Students that transfer between systems would need to re-file the affidavit. The student attests under penalty of law on the affidavit that the student meets the enrollment requirements and provides the documentation (high school transcripts) and states that he or she will adjust his or her immigration status as soon as eligible to do so.

This law provides for exemption from paying nonresident tuition for some undocumented immigrant students that meet the requirements, many of whom came to the US at an early age, who have been raised in the US and who often do not find out until high school graduation that they are undocumented. The law does not cover all undocumented students because of the requirements. The students raised here know no other country as their own and in all likelihood will remain in the US. However, students qualified as AB 540 will not be classified as California residents.

Some undocumented students may have come on visas that have since expired. The Asian Pacific Islander (API) community has been the hardest hit by the visa exemption. Many API students enter the country with a visa and remain in the country. When they apply for AB 540, they state that they came in with a B or F visa and therefore are denied eligibility for AB 540. But some expired visa holders who are “out of status” may be eligible if they meet the requirements. Such students should still be encouraged to apply.

It is estimated that the number of undocumented students is about 1.8 million nationally, or 15 percent of all immigrants. About 65,000 graduate from high school annually. In California, the estimated number of undocumented high school graduates is 20,000 to 24,000. Only about five to ten percent go on to college and university. Since the inception of AB 540 about 600 of the 1,700 AB 540 University of California students were undocumented. The law is written to account for high school seat time and graduation, thus US born students who graduate and return to California do not have to wait out a year and a day to reclaim their state residency. They can use AB 540 to become exempt from paying out-of-state tuition. The University of California is the only institution that can report the numbers. The CSU and the CCC numbers are unknown, but are estimated at about 3,000 for the CSU. The CCCs likely have the highest enrollment. At CSULB, the number is estimated at over 200. Overall it is estimated that since the passage of AB 540 in 2001, over 5,000 undocumented students have benefited.

How Else are Undocumented Students Impacted by Their Status?

Undocumented students have many challenges. The following are examples that adversely impact them. They are:

  • Not eligible for state and federal financial aid and support programs
  • Not eligible for a California Drivers License
  • Not eligible to have a Social Security Number (SSN)
  • They have no work authorization
  • No paid internships, fellowships
  • Not eligible for some careers that require licensure, back ground checks, or SSN
  • Cannot travel to conferences, field trips, and research colloquiums when official identification (ID) is required
  • Inability to take tests for graduate school that are held off campus because they do not have the required ID
  • Current immigration laws limit their opportunities to regularize their immigration status

Students have other challenges. They often have limited financial support from families and may in fact be expected to contribute to the family and may have other family obligations. Because they cannot legally drive, there are transportation issues and students have to rely on buses, often traveling two or three hours to get to school. They live with the fear of being detected by immigration authorities.

When on campus they face other barriers such as limited information about campus support, insensitivity, rudeness, and demeaning attitudes about the undocumented. These students are very aware of subtle exclusory language and often assume that if not explicitly included, the services must not be for them. Simple accommodations often go unoffered because faculty and staff simply do not know what to do.

But There are Some Opportunities

  • They can receive private grants and scholarships
  • They can pay taxes using the Individual Taxpayer Identification Number (ITIN) instead of the SSN
  • They are eligible for all other campus services

While undocumented students are not eligible for federal and state aid, they can apply for private funding. Financing their education is the primary issue, yet many of the scholarships require US citizenship or legal residency. Students and advisors should inquire whether AB 540 students might be eligible to apply by using their ITIN. Students will have to pay taxes for any awards beyond their tuition, such as books and supplies. Furthermore, if a student filed an application with the Citizenship and Immigration Services (CIS), the student may already be eligible for resident fee status and also able to receive financial aid. Students will receive a letter from the United States Citizenship and Immigration Services informing them of this. Students who receive the letter can take it to the Financial Aid office on campus to inquire about their eligibility. Students should speak with their attorney, because utilizing any public benefits while undocumented can be deemed grounds for automatic deportation on the day the individual is able to regularize his immigration status.

Legal Challenges to the Education of Undocumented Students

Individuals interested in the legal pendulum of immigration law may want to review the following cases:

  • 1982 Pyler vs. Doe: The US Supreme Court held that K-12 students regardless of immigration status have the right to a K-12 public school education. In its findings, the Court held that children of undocumented immigrants are protected under the due process clause of the 14th Amendment. The ruling meant that the state could not force out-of-status immigrant children to pay for public school education. The ruling supported all students, including language minority students, migrant students, and homeless students with meaningful and appropriate educational programs, allowing all students the same benefits and rights of participation regardless of race, color, disability, sex, religion, national origin, or age.
  • 1986 Leticia A vs. the UC Regents and the CSU Board of Trustees: The Alameda County Superior Court ruled that undocumented immigrants that had graduated from a California high school were eligible to attend the University of California (UC) and the California State University (CSU) and avoid out of state fees. The decision allowed “Leticia A” students to be treated as residents for tuition and state financial aid purposes. The California Community Colleges system (CCC) was not mentioned in the ruling, but the CCC implemented the policy. The California Student Aid Commission also voted to follow the Leticia A ruling, even though it was not part of the litigation, resulting in low income qualified undocumented students of that era being eligible for the Cal Grant Program.
  • 1991Bradford vs. The UC Regents: The Los Angeles Superior Court overturned the Leticia A ruling for both the UC and the CSU. The CCC followed suit.
  • 1996 Illegal Immigration Reform and Immigrant Responsibility Act: barred immigrants from receiving a public benefit. This law prevented non-citizens from receiving any type of federal benefit. AB 540 does not create a conflict to federal immigration law because paying in-state tuition does not constitute a benefit.
  • Other Legal Challenges to In-State Tuition: A 2005 Kansas case, Day vs. Selecius was thrown out of court because the plaintiff could not show that they were “injured”. A 2006 California case, Martinez vs. Regents was dismissed and found AB 540 consistent with federal law. It was appealed and sent back to trial, but AB 540 is still in effect.

Legislative Horizon

Only Texas, Oklahoma, and New Mexico provide financial aid to undocumented students. The California Legislature has passed a number of bills aimed at expanding eligibility of AB 540 and providing State aid, but the Governor has vetoed the bills. There is continued support in the Legislature for a bill that would allow students to compete for institutional aid. This bill has been widely known as the California DREAM Act, named after the federal DREAM act.

The federal DREAM Act (Development, Relief, and Education for Alien Minors Act) is a bipartisan bill in both houses of Congress. It would provide for high school graduates who were brought to the US as children (before age 16) and have lived here for at least five years, and demonstrate good moral character, and have no criminal record, and enroll in college or the military for two or four years to apply for conditional resident status. The bill would:

  • Provide protection from deportation for children 12 years of age and older that are enrolled in primary and secondary school.
  • Grant conditional resident status to students that have graduated from high school or obtained the equivalent, are enrolled in two or four-year institutions of higher education or have enlisted in the armed forces.
  • Allows those granted conditional resident status to become permanent residents if they have successfully completed two years of college or two years of military service.
  • Enable students to be eligible for subsidized student loans, federal work-study and state financial aid programs. They would not be eligible for Pell Grants.

It is the only immigration reform proposal reported to the Senate floor in the 108th Congress. Since then, the DREAM Act has been held out to be included along with comprehensive immigration reform. Once passed, the DREAM Act would allow 360,000 high school graduates to gain the legal means to work and it is estimated that 715,000 children would be motivated to finish high school. The racial/ethnic breakdown of the undocumented is estimated to be 56 percent Mexican, 22 percent Latin American, 13 percent Asian, 6 percent from Europe and Canada, and 3 percent from Africa and other regions of the world.